Algorithmic Transparency: End Secret Profiling

Disclose the basis of automated decision-making

Introduction

“At the intersection of law and technology - knowledge of the algorithm is a fundamental human right” - EPIC President Marc Rotenberg

Algorithms are complex mathematical formulas and procedures implemented into computers that process information and solves tasks. Advancements in artificial intelligence (AI), machines capable of intelligent behavior, are the result of integrating computer algorithms into AI systems enabling the system to not only follow instructions but also to learn.

As more decisions become automated and processed by algorithms, these processes become more opaque and less accountable. The public has a right to know the data processes that impact their lives so they can correct errors and contest decisions made by algorithms. Personal data collected from our social connections and online activities are used by the government and companies to make determinations about our ability to fly, obtain a job, get security clearance, and even determine the severity of criminal sentencing. These opaque, automated decision-making processes bear risks of secret profiling and discrimination as well as undermine our privacy and freedom of association.

Without knowledge of the factors that provide the basis for decisions, it is impossible to know whether government and companies engage in practices that are deceptive, discriminatory, or unethical. Algorithmic transparency, for example, plays a key role in resolving the question of Facebook's role in the Russian interference of the 2016 Presidential Election. Therefore, algorithmic transparency is crucial to defending human rights and democracy online.

Top News

EPIC To Congress: Require Algorithmic Transparency For Google, Dominant Internet Firms: EPIC has sent a statement to the House Judiciary Committee in advance of a hearing on Google's business practices. EPIC said that "algorithmic transparency" should be required for Internet firms. EPIC explained that Google's acquisition of YouTube led to a skewing of search results after Google substituted its secret "relevance" ranking for the original objective ranking, based on hits and ratings. EPIC pointed out that Google's algorithm preferences YouTube's web pages over EPIC's in searches for videos concerning "privacy." Last year the European Commission found that Google rigged search results to preference its own online service. The Commission required Google to change its algorithm to rank its own shopping comparison the same way it ranks its competitors. The US Federal Trade Commission has failed to take similar action, after even receiving substantial complaints. EPIC also urged Congress to consider the Universal Guidelines for AI as a basis for federal legislation. (Dec. 10, 2018)

EPIC to Senators: Universal Guidelines for Artificial Intelligence Are a Model Policy: In a statement to a Senate committee focused on technology and privacy, EPIC urged Senators to implement the Universal Guidelines for Artificial Intelligence in US law. The Guidelines maximize the benefits of AI, minimize the risk, and ensure the protection of human rights. More than 200 experts and 50 organizations, including the American Association for the Advancement of Science, have endorsed the Universal Guidelines. EPIC also expressed concern about the secrecy surrounding the Senate workshops on AI. In a petition earlier this year, EPIC and leading scientific organizations, including AAAS, ACM and IEEE, and nearly 100 experts urged the White House to solicit public comments on AI policy. EPIC told the Senate committee that the Senate must also ensure a public process for developing AI policy. EPIC has pursued several criminal justice FOIA cases, and FTC consumer complaints to promote transparency and accountability for AI decisionmaking. In 2015, EPIC launched an international campaign for Algorithmic Transparency. (Nov. 30, 2018)

EPIC has filed an amicus brief with the U.S. Court of Appeals for the Sixth Circuit in United States v. Miller, arguing that the Government must prove the reliability of Google email screening technique. The lower court held that law enforcement could search any images that Google's algorithm had flagged as apparent child pornography. EPIC explained that a search is unreasonable when the government cannot establish the reliability of the technique. EPIC also warned that the government could use this technique "to determine if files contain religious viewpoints, political opinions, or banned books." EPIC has promoted algorithmic transparency for many years. EPIC routinely submits amicus briefs on the application of the Fourth Amendment to investigative techniques. EPIC previously urged the government to prove the reliability of investigative techniques in Florida v. Harris.

EPIC has appealed a federal district court decision for the release of a "Predictive Analytics Report." The district court backed the Department of Justice when the agency claimed the "presidential communications privilege." But neither the D.C. Circuit Court of Appeals nor the Supreme Court has ever permitted a federal agency to invoke that privilege in a FOIA case. EPIC sued the agency in 2017 to obtain records about "risk assessment" tools in the criminal justice system. These controversial techniques are used to set bail, determine criminal sentences, and even contribute to determinations about guilt or innocence. EPIC has pursued numerous FOIA cases concerning algorithmic transparency, passenger risk assessment, "future crime" prediction, and proprietary forensic analysis. The D.C. Circuit will likely hear EPIC's appeal next year.

The Council of Europe has opened for signatureupdates to Convention 108, the international Privacy Convention. Among other changes, the modernized Convention requires prompt data breach notification, establishes national supervisory authorities to ensure compliance, permits transfers abroad only when personal data is sufficiently protected, and provides new user rights, including algorithmic transparency. Twenty-one nations have signed the treaty. Many more are expected to sign. EPIC and consumer coalitions have urged the United States to ratify the international Privacy Convention. The complete text of the modernized Convention will be available in the 2018 edition of the Privacy Law Sourcebook, available at the EPIC Bookstore.

California Governor Jerry Brown recently signed two modern privacy laws, including a first in the nation law governing the security of the Internet of Things. SB327 sets baseline security standards for IoT devices. EPIC recently submitted comments to the Consumer Product Safety Commission recommending similar action. Governor Brown also signed a bill banning anonymous bots. The law makes it illegal to use a bot, or automated account, to mislead California residents or communicate without disclosing the identity of the actual operator. EPIC President Marc Rotenberg had earlier proposed that Asimov's Laws of Robotics be updated to require that robots reveal the basis of their decisions (Algorithmic Transparency) and that robots reveal their actual identity.

In advance of a hearing on Twitter: Transparency and Accountability, EPIC has sent a statement to the House Energy and Commerce Committee. EPIC said that "algorithmic transparency" could help establish fairness, transparency, and accountability for much of what users see online. In a 2011 statement to the FTC during the investigation of Google, EPIC said that Google's acquisition of YouTube led to a skewing of search results after Google substituted its secret "relevance" ranking for the original objective ranking, based on hits and ratings. EPIC pointed out that it was then competing with the search giant for the rankings of "privacy" videos and that Google's algorithm preferences Google's web pages over EPIC's. The FTC took no action on EPIC's complaint. But last year the European Commission found that Google in fact rigged search results to give preference to its own shopping service. The Commission required Google to change its algorithm to rank its own shopping comparison the same way it ranks its competitors.

In advance of a hearing concerning the Office of Science and Technology Policy, EPIC said that OSTP should ensure public participation in the development of AI policy. EPIC told the Senate Commerce Committee that Congress must also implement oversight mechanisms for the use of AI. EPIC said that Congress should require algorithmic transparency, particularly for government systems that involve the processing of personal data. In a recent petition to OSTP, EPIC, leading scientific organizations, including AAAS, ACM and IEEE, and nearly 100 experts urged the White House to solicit public comments on artificial intelligence policy. EPIC has pursued several criminal justice FOIA cases, and FTC consumer complaints to promote transparency and accountability. In 2015, EPIC launched an international campaign for Algorithmic Transparency.

EPIC has advised the FTC on algorithmic decision tools, artificial intelligence, and predictive analytics for the hearings on "Competition and Consumer Protection in the 21st Century." In the comments, EPIC urged the FTC to (1) prohibit unfair and deceptive algorithms, (2) seek legislative authority for "algorithmic transparency" to establish consumer protection in automated decision-making, (3) provide guidance on the ethical design and implementation of algorithms, and (4) make public the "Universal Tennis Rating" algorithm that secretly scores young athletes. Calling on the Commission to act on EPIC's repeatedcomplaints on the proprietary algorithm that poses risks to children's privacy, EPIC said: "secret algorithms are unfair and deceptive," conceal bias, and deprive consumers of opportunities in the marketplace. EPIC champions "Algorithmic Transparency", and has advised Congress that algorithmic transparency is necessary for fairness and accountability.

A federal court in the District of Columbia has blocked EPIC's efforts to obtain a secret "Predictive Analytics Report" in a FOIA case against the Department of Justice. The court sided with the agency which had withheld the report and asserted the "Presidential communications privilege." Neither the Supreme Court nor the D.C. Circuit has ever permitted a federal agency to invoke that privilege in a FOIA case. EPIC sued the agency in 2017 to obtain records about "risk assessment" tools in the criminal justice system. These techniques are used to set bail, determine criminal sentences, and even contribute to determinations about guilt or innocence. Many criminal justice experts oppose their use. EPIC has pursued several FOIA cases concerning "algorithmic transparency,"passenger risk assessment, "future crime" prediction, and proprietary forensic analysis. The case is EPIC v. DOJ (Aug. 14, 2018 D.D.C.). EPIC is considering an appeal.

Sen. Dianne Feinstein (D-Calif.) has introduced S. 3127, the Bot Disclosure and Accountability Act of 2018. The bill directs the FTC to create a rule to require social media companies to disclose any social media bots on their platform. The bill also prohibits candidates and political parties from using bots. "This bill is designed to help respond to Russia's efforts to interfere in U.S. elections through the use of social media bots, which spread divisive propaganda," Feinstein said. Earlier this week, EPIC sent a statement to the House Judiciary Committee arguing that "algorithmic transparency" could help establish fairness, transparency, and accountability for much of what users see online. EPIC has also recommended identification requirements for drones.

In advance of a hearing on Filtering Practices of Social Media Companies, EPIC has sent a statement to the House Judiciary Committee. EPIC said that "algorithmic transparency" could help establish fairness, transparency, and accountability for much of what users see online. In 2011, EPIC sent a letter to the FTC stating that Google's acquisition of YouTube led to a skewing of search results after Google substituted its secret "relevance" ranking for the original objective ranking, based on hits and ratings. The FTC took no action on EPIC's complaint. But last year, after a seven year investigation, the European Commission found that Google rigged search results to give preference to its own shopping service. The Commission required Google to change its algorithm to rank its own shopping comparison the same way it ranks its competitors.

The Federal Election Commission is holding a two day hearing to hear expert testimony on the agency's proposed rule governing disclosures for political ads on the Internet. Christine Bannan, EPIC Administrative Law and Policy Fellow, will testify on the second day of the hearing. EPIC submitted multiplecomments to the FEC urging the agency to promulgate rules that would require online political ads to disclose funders as is required for traditional media ads. EPIC proposed the FEC adopt "algorithmic transparency" procedures that would require advertisers to disclose the demographic factors behind targeted political ads, as well as the source and payment, and maintain a public directory of advertiser data. EPIC's Project on Democracy and Cybersecurity, established after the 2016 presidential election, seeks to safeguard democratic institutions from various forms of cyber attack.

In advance of a hearing on "Artificial Intelligence - With Great Power Comes Great Responsibility," EPIC told the House Science Committee that Congress must implement oversight mechanisms for the use of AI. EPIC said that Congress should require algorithmic transparency, particularly for government systems that involve the processing of personal data. EPIC said that Congress should amend the E-Government Act to require disclosure of the "logic" of algorithms that profile individuals. EPIC also said that the White House Select Committee on Artificial Intelligence should be open to public comment. EPIC has pursued several criminal justice FOIA cases, and FTC consumer complaints to promote transparency and accountability. In 2015, EPIC launched an international campaign for Algorithmic Transparency.

EPIC submitted comments on the Federal Election Commission's (FEC) proposed rules for political ads on the internet. The FEC proposed two alternative rules, one which would hold internet companies to the same standard as traditional media companies and one which would make exceptions for online ads. EPIC stated: "FEC rules should be technology-neutral and consistent across media platforms." EPIC also recommended that the FEC adopt algorithmic transparency rules, which would require advertisers to disclose the demographic factors behind targeted political ads, as well as the source and payment, and maintain a public directory of advertiser data. EPIC's Project on Democracy and Cybersecurity, established after the 2016 presidential election, seeks to safeguard democratic institutions from various forms of cyber attack.

EPIC has urged the Federal Trade Commission to act on a Complaint EPIC previously filed with the FTC about the secret scoring of young tennis players. The EPIC complaint concerns the "Universal Tennis Rating," a proprietary algorithm used to assign numeric scores to tennis players, many of whom are children under 13. According to EPIC, "the UTR score defines the status of young athletes in all tennis-related activity; impacts opportunities for scholarship, education and employment; and may in the future provide the basis for 'social scoring' and government rating of citizens." EPIC pointed to objective, provable, and transparent rating systems such as ELO as far preferable. EPIC has championed "Algorithmic Transparency" as a fundamental human right. Earlier this month, the Council of Europe adopted the modernized Privacy Convention that establishes a legal right for individuals to obtain "knowledge of the reasoning" for the processing of personal data.

The White House has established the "Select Committee on Artificial Intelligence" to advise the President and coordinate AI policies among executive branch agencies. The Office of Science and Technology Policy, NSF, and DARPA will lead the interagency committee. According to the White House, the goals of the Committee are (1) prioritize funding for AI research and development; (2) remove barriers to AI innovation; (3) train the future American workforce; (4) achieve strategic military advantage; (5) leverage AI for government services; and (6) lead international AI negotiations. The Committee will also coordinate efforts across federal agencies to research and adopt technologies such as autonomous systems, biometric identification, computerized image and video analysis, machine learning and robotics. It is unclear whether the Committee will include public perspectives in its work. In 2014, EPIC, joined by 24 consumer privacy, public interest, scientific, and educational organizations petitioned the OSTP to accept public comments on a White House project concerning Big Data. The petition stated, "The public should be given the opportunity to contribute to the OSTP's review of 'Big Data and the Future of Privacy' since it is their information that is being collected and their privacy and their future that is at stake." In 2015 EPIC launched an international campaign for Algorithmic Transparency and recently urged Congress to establish oversight mechanisms for the use of AI by federal agencies.

In advance of a hearing on Filtering Practices of Social Media Companies, EPIC has sent a statement to the House Judiciary Committee. EPIC said that "algorithmic transparency" could help establish fairness, transparency, and accountability for much of what users see online. In 2011, EPIC sent a letter to the FTC stating that Google's acquisition of YouTube led to a skewing of search results after Google substituted its secret "relevance" ranking for the original objective ranking, based on hits and ratings. The FTC took no action on EPIC's complaint. But last year, after a seven year investigation, the European Commission found that Google rigged search results to give preference to its own shopping service. The Commission required Google to change its algorithm to rank its own shopping comparison the same way it ranks its competitors.

In advance of a hearing on "Game Changers: Artificial Intelligence Part III, Artificial Intelligence and Public Policy," EPIC told the House Oversight Committee that Congress must implement oversight mechanisms for the use of AI by federal agencies. EPIC said that Congress should require algorithmic transparency, particularly for government systems that involve the processing of personal data. EPIC also said that Congress should amend the E-Government Act to require disclosure of the logic of algorithms that profile individuals. EPIC made similar comments to the UK Privacy Commissioner on issues facing the EU under the GDPR. A recent GAO report explored challenges with AI, including the risk that machine-learning algorithms may not comply with legal requirements or ethical norms. EPIC has pursued several criminal justice FOIA cases, and FTC consumer complaints to promote transparency and accountability. In 2015, EPIC launched an international campaign for Algorithmic Transparency.

EPIC has submitted extensive comments on proposed guidance for Data Protection Impact Assessments. The new European Union privacy law - the "GDPR" — requires organizations to carefully assess the collection and use of personal data. In comments to UK privacy commissioner, EPIC said that disclosure of the technique for decision making is a core requirement for Data Protection Impact Assessments. EPIC supports "Algorithmic Transparency". EPIC has pursued criminal justice FOIA cases, and FTC consumer consumer complaints to promote transparency and accountability. EPIC has warned Congress of the risks of "citizen scoring."

Congressional leaders have announced the establishment of the Congressional Artificial Intelligence Caucus. The Caucus will bring together experts from academics, government, and the private sector to inform policymakers of the technological, economic and social impacts of advances in AI. The Congressional AI Caucus is bipartisan and co-chaired by Congressmen John Delaney (D-MD) and Pete Olson (R-TX). This is one of several initiatives in Congress to pursue AI policy objectives. Rep. Delaney introduced the FUTURE of Artificial Intelligence Act (H.R. 4625) and Rep. Elise Stefanik (R-NY) introduced a bill (H.R. 5356) that would create the National Security Commission on AI. In 2015, EPIC launched an international campaign for Algorithmic Transparency. EPIC has also warned Congress about the growing of opaque and unaccountable techniques in automated decision-making.

French President Emmanuel Macron has expressed support for "Algorithmic transparency" as a core democratic principle. In an interview with Wired magazine, President Macron said that algorithms deployed by the French government and companies that receive public funding will be open and transparent. President Macron emphasized, "I have to be confident for my people that there is no bias, at least no unfair bias, in this algorithm." President Macron's statement echoed similar comments in 2016 by German Chancellor Angela Merkel, "These algorithms, when they are not transparent, can lead to a distortion of our perception, they narrow our breadth of information." EPIC has a longstanding campaign to promote transparency and to end secret profiling. At UNESCO headquarters in 2015, EPIC said that algorithmic transparency should be a fundamental human right. In recent comments to UNESCO, EPIC highlighted the risk of secret profiling, content filtering, the skewing of search results, and adverse decision-making, based on opaque algorithms.

EPIC has provided comments to UNESCO on a proposed framework for Internet Universality Indicators. The UNESCO framework emphasizes Rights, Openness, Accessibility, and Multistakeholder participation. UNESCO said that the framework will help guide protections for fundamental rights. EPIC also proposed "Algorithmic Transparency" as a key indicator of Internet Universality. EPIC highlighted the risk of secret profiling, content filtering, the skewing of search results, and adverse decisionmaking, based on opaque algorithms. EPIC has worked closely with UNESCO for over 20 years on Internet policy issues. At UNESCO headquarters in 2015, EPIC said that algorithmic transparency should be a fundamental human right.

The Senate Intelligence Committee held a hearing today with top officials from all U.S. intelligence agencies: Office of the Director of National Intelligence, CIA, NSA, Defense Intelligence Agency, FBI, and the National Geospatial-Intelligence Agency. The officials unanimously agreed that Russia interfered in the 2016 election and will interfere in the 2018 election, noting that they have already observed attempts to influence upcoming elections. Director of National Intelligence Dan Coats said: "There should be no doubt that Russia perceived that its past efforts as successful and views the 2018 U.S. midterm elections as a potential target for Russian influence operations." EPIC launched the Project on Democracy and Cybersecurity, after the 2016 presidential election, to safeguard democratic institutions. EPIC is currently pursuing several FOIA cases concerning Russian interference, including EPIC v. FBI (cyberattack victim notification), EPIC v. ODNI (Russian hacking), EPIC v. IRS (release of Trump's tax returns), and EPIC v. DHS (election cybersecurity). EPIC also provided comments to the Federal Election Commission to improve transparency of election advertising on social media.

The Justice Department, in response to an EPIC FOIA lawsuit, has admitted that the United States Sentencing Commission never produced an evaluation of "risk assessment" tools in criminal sentencing. In 2014, Attorney General Eric Holder expressed concern about bias in criminal sentencing "risk assessments" and called on the Sentencing Commission to study the problem and produce a report. But after EPIC requested that study and sued the DOJ to obtain it, the DOJ conceded that the report was never produced. EPIC did obtain emails confirming the existence of a 2014 DOJ report about "predictive policing" algorithms, but the agency also withheld that report. "Risk assessments" are secret techniques used to set bail, to determine criminal sentences, and even make decisions about guilt or innocence. EPIC has pursued several FOIA cases to promote "algorithmic transparency", including cases on passenger risk assessment, "future crime" prediction, and proprietary forensic analysis.

Senators Maria Cantwell (D-WA) and Brian Schatz (D-HI) are planning legislation to establish new oversight committees for the use of AI. Cantwell's bill—Future of Artificial Intelligence Act of 2017—is cosponsored by Senators Ed Markey (D-MA) and Todd Young (R-IN) and would establish an AI committee at the Commerce Department. A companion bill in the House is sponsored by Representatives John Delaney (D-MD) and Pete Olson (R-TX), co-chairs of the Artificial Intelligence Caucus. Schatz has announced his intent to introduce a bill creating an independent AI commission. In 2015, EPIC launched an international campaign in support of Algorithmic Transparency and has warned Congress about the use of opaque technique in automated decision-making.

In advance of a hearing on "Digital Decision-Making: The Building Blocks of Machine Learning and Artificial Intelligence," EPIC warned a Senate committee that many organizations now make decisions based on opaque techniques they don't understand. EPIC told Congress that algorithmic transparency is critical for democratic accountability. In 2015, EPIC launched an international a campaign in support of Algorithmic Transparency. At a speech to UNESCO in 2015, EPIC President Marc Rotenberg called knowledge of the algorithm "a fundamental human right." Earlier this year, EPIC filed a complaint with the FTC that challenged the secret scoring of athletes by Universal Tennis. EPIC said to the FTC that it "seeks to ensure that all rating systems concerning individuals are open, transparent and accountable."

In advance of a hearing on "Algorithms: How Companies' Decisions About Data and Content Impact Consumers," EPIC warned a Congressional committee that many organizations now make decisions based on opaque techniques they don't understand. EPIC told Congress that algorithmic transparency is critical for democratic accountability. In 2015, EPIC launched an international a campaign in support of Algorithmic Transparency. At a speech to UNESCO in 2015, EPIC President Marc Rotenberg called knowledge of the algorithm "a fundamental human right." Earlier this year, EPIC filed a complaint with the FTC that challenged the secret scoring of athletes by Universal Tennis. EPIC said to the FTC that it "seeks to ensure that all rating systems concerning individuals are open, transparent and accountable."

After receiving over 150,000 public comments, the Federal Election Commission voted unanimously to make new rules governing online political ad disclosures. EPIC, numerous other organizations, and lawmakers pressed the FEC to require transparency for online ads to combat foreign interference in U.S. elections. The FEC had solicited public comments on its internet disclosure rules three times in six years before finally taking action. A group of 15 Senators wrote, "The FEC must close loopholes that have allowed foreign adversaries to sow discord and misinform the American electorate." And a group of 18 members of Congress urged the FEC to "address head-on the topic of illicit foreign activity in U.S. elections." EPIC suggested the FEC go a step beyond simple disclosures and require "algorithmic transparency" for online platforms that deliver targeted ads to voters. Several senators have also introduced a bipartisan bill that would require the same disclosures for online ads as for television and radio. EPIC is fully engaged in protecting the integrity of elections with its Project on Democracy and Cybersecurity.

EPIC and a coalition of civil rights organizations have sent a letter to the Acting Secretary of Homeland Security strongly opposing the Extreme Vetting Initiative. A similar letter was sent by technical experts. The government's 'Extreme Vetting' initiative uses opaque procedures, secret profiles, and obscure data including social media post, to review visa applicants and make final determinations. EPIC has warned against both the government's use of social media data and secret algorithms to profile individuals for decision making purposes. EPIC is also pursuing a FOIA request for details on the relationship between the Immigration and Customs Enforcement agency and Palantir, a company that provides software to analyze large amounts of data.

A group of 15 Senators led by Mark Warner (D-VA), Amy Klobuchar, (D-MN) and Claire McCaskell, (D-MO) have urged the Federal Election Commission to improve transparency for online political ads. The Senators stated that, "the FEC can and should take immediate and decisive action to ensure parity between ads seen on the internet and those on television and radio." The Senators emphasized how "Russian operatives used advertisements on social media platforms to sow division and discord" during the 2016 election. EPIC provided comments to the FEC calling for "algorithmic transparency" and the disclosure of who paid for online ads. Senators Klobuchar, Warner, and McCain (R-AZ) have also introduced a bipartisan bill that would require the same disclosures for online political advertisements as for those on television and radio. EPIC's Project on Democracy and Cybersecurity, established after the 2016 presidential election, seeks to promote election integrity and safeguard democratic institutions from various forms of cyber attack.

In comments to the Federal Election Commission, EPIC urged new rules to require transparency for online political ads. EPIC said voters should "know as much about advertisers as advertisers know about voters." EPIC called for algorithmic transparency which would require advertisers to disclose the demographic factors behind targeted political ads, as well as the source and payment. The FEC reopened a comment period on proposed rules "in light of developments." This week representatives from Facebook, Twitter and Google testified at two Senatehearings on the role that social media played in Russian meddling in the 2016 election. Senators Klobuchar (D-MN), Warner (D-VA), and McCain (R-AZ) have also introduced a bipartisan bill that would require increased disclosures for online political advertisements. EPIC's Project on Democracy and Cybersecurity, established after the 2016 presidential election, seeks to safeguard democratic institutions from various forms of cyber attack.

EPIC has just received new documents in a FOIA case against the Department of Justice, however the agency is refusing to release reports about the use of "risk assessment" tools in the criminal justice system. In 2014, the Attorney General called on the U.S. Sentencing Commission to review the use of "risk assessments" in criminal sentencing, expressing the concern about potential bias. EPIC requested that document and filed suit against the DOJ to obtain it, but the agency failed to release the report by a court-ordered deadline. EPIC did obtain emails confirming the existence of a 2014 DOJ report about "predictive policing" algorithms, but the agency also withheld that report. "Risk assessments" are secret techniques used to set bail, to determine criminal sentences, and even decide guilt or innocence. EPIC has pursued several FOIA cases to promote algorithmic transparency, including cases on passenger risk assessment, "future crime" prediction, and proprietary forensic analysis.

Mattel will scrap its plans to sell Aristotle, an Amazon Echo-type device that collects and stores data from young children. The Campaign for a Commercial-Free Childhood sent a letter and 15,000 petition signatures to the toymaker, warning of privacy and childhood development concerns. CFCC said that "young children shouldn't be encouraged to form bonds and friendships with data-collecting devices." Senator Markey (D-MA) and Representative Barton (R-TX) also chimed in, demanding to know how Mattel would protect families' privacy. EPIC backed the CFCC campaign and urged the FTC in 2015 to regulate "always-on" Internet devices. A pending EPIC complaint at the FTC concerns the secret scoring of young athletes.

In advance of a hearing on financial technology, EPIC recommended that the Senate Committee establish privacy standards for financial companies that use social media and secret algorithms to make determinations about consumers. In light of the recent Equifax breach, EPIC proposed that the Committee make privacy and security its top priorities. Earlier this year, EPIC submitted a similar statement to the House Committee on Energy and Commerce. EPIC also recently filed a complaint with the CFPB regarding "starter interrupt devices" deployed by auto lenders to remotely disable cars when individuals are late on their payments. Testimony of Professor Frank Pasquale on "Exploring the Fintech Landscape."

EPIC has submitted a Freedom of Information Act request to Immigration and Customs Enforcement seeking details of the agency's relationship with Palantir. The federal agency contracted with the Peter Thiel company to establish vast databases of personal information, and develop new capabilities for searching, tracking, and profiling. EPIC is seeking the ICE contracts with Palantir, as well as training materials, reports, analysis, and other documents. The ICE Investigative Case Management System and the FALCON system now connect personal data across federal government, oftentimes in violation of the federal Privacy Act. The Intercept reported that FALCON "will eventually give agents access to more than 4 billion 'individual data records.'" In FOIA lawsuit EPIC v. CBP, EPIC uncovered Planter's role in Analytical Framework for Intelligence, a program that assigns "risk assessment" scores to travelers. EPIC continues to advocate for greater transparency in computer-based decision making.

The Supreme Court has declined to review the ruling of a state court that upheld the use of a secret algorithm to determine a criminal sentence. The petitioner Loomis argued that he was not able to assess the fairness or accuracy of the legal judgement, and that the secret "risk assessment" algorithm therefore violated fundamental Due Process right. EPIC has pursued several related cases to establish the principle of algorithmic transparency in the United States. In EPIC v. DHS, EPIC obtained documents about secret behavioral algorithms that purportedly determine an individual's likelihood of committing a crime. In a series of state FOI cases, EPIC obtained records from state agencies about the use of propriety DNA analysis tools to determine guilt or innocence. EPIC is currently litigating EPIC v. CBP before the DC Circuit Court of Appeals, a case concerning the secret scoring of airline passengers by the federal government.

A federal district court has held that firing public school teachers based on the results of a secret algorithm is unconstitutional. The case, Houston Federation of Teachers vs. Houston Independent School District, concerned a commercial software company's proprietary appraisal system that was used to score teachers. Teachers could not correct their scores, independently reproduce their scores, or learn more than basic information about how the algorithm worked. "When a public agency adopts a policy of making high stakes employment decisions based on secret algorithms incompatible with minimum due process, the proper remedy is to overturn the policy," the court wrote. EPIC recently filed a complaint asking the FTC to stop the secret scoring of young tennis players. EPIC has pursued several cases on "Algorithmic Transparency," including one for rating travelers and another for assessing guilt or innocence.

EPIC submitted a statement to a House Committee hearing on financial technologies on the risks with new financial services. Companies now use social media data and secret algorithms to make determinations about consumers. They are also reaching out, through the "Internet of Things," to control consumers. EPIC's recently filed a complaint with the CFPB about "starter interrupt devices," deployed by auto lenders to remotely disable cars when individuals are late on their payments.

EPIC has filed a complaint with the Federal Trade Commission to stop the secret scoring of young tennis players. The EPIC complaint concerns the "Universal Tennis Rating", a proprietary algorithm used to assign numeric scores to tennis players, many of whom are children under 13. "The UTR score defines the status of young athletes in all tennis-related activity; impacts opportunities for scholarship, education and employment; and may in the future provide the basis for 'social scoring' and government rating of citizens," according to EPIC. EPIC urged the FTC to “find that a secret, unprovable, proprietary algorithm to evaluate children is an unfair and deceptive trade practice.” In 2015, EPIC launched a campaign on "Algorithmic Transparency" and has pursued several cases, including one for rating travelers and another for assessing guilt or innocence, that draw attention to the social risks of secret algorithms.

EPIC has sent a statement to the Senate Judiciary Committee ahead of a hearing on the new Antitrust Chief. EPIC urged the Committee to consider the role of consumer privacy and data protection in merger reviews. EPIC warned that "monopoly platforms" are reducing competition, stifling innovation, and undermining privacy. EPIC pointed to the FTC's failure to block the Google/DoubleClick merger which accelerated Google's dominance of Internet advertising and the WhatsApp/Facebook merger which paved the way for Facebook to access confidential WhatsApp user data. EPIC also suggested that "algorithmic transparency" would become increasingly important for merger analysis. EPIC is a leading consumer privacy advocate and regularly submits complaints urging investigations and changes to unfair business practices.

The European Parliament has adopted a resolution on the fundamental rights implications of big data. The resolution stresses that "the prospects and opportunities of big data" can only be realized "when public trust in these technologies is ensured by a strong enforcement of fundamental rights and compliance with current EU data protection law." The resolution discusses the importance of data protection, accountability, transparency, data security, and privacy by design. EPIC has warned about the risks of big data and launched campaigns on "Algorithmic Transparency" and data protection.

The Pew Research Center has released a report, "Code-Dependent: Pros and Cons of the Algorithm Age." The Pew report discusses the impact that experts expect algorithms to have on individuals and society. Among the themes in the report are the biases and lack of human judgment in algorithmic decisionmaking and the need for "algorithmic literacy, transparency, and oversight." EPIC has promoted "Algorithmic Transparency" for many years and has proposed two amendments to Asimov's Laws of Robotics that would require autonomous devices to reveal the basis of their decisions and their actual identity.

The Aspen institute released a report on the Artificial Intelligence workshop on connected cars, healthcare, and journalism. "Artificial Intelligence Comes of Age" explored issues at "the intersection of AI technologies, society, economy, ethics and regulation." The Aspen report notes that "malicious hacks are likely to be an ongoing risk of self-driving cars" and that "because self-driving cars will generate and store vast quantities of data about driving behavior, control over this data will become a major issue." The Aspen report discusses the tension between privacy and diagnostic benefits in healthcare AI and describes "some of the alarming possible uses of AI in news media." EPIC has promoted Algorithmic Transparency and has been at the forefront of vehicle privacy through testimony before Congress, amicus briefs, and comments to the NHTSA.

In an article today, The Verge featured an EPIC Freedom of Information Act lawsuit about a controversial government data mining program, operated by the Department of Homeland Security. EPIC is seeking documents on the "Analytical Framework for Intelligence," a program that assigns "risk assessment" scores to travelers using data from sources including the Automated Targeting System, also operated by the DHS. Travelers "don't know how the scores are being generated and what the factors are," said EPIC FOIA Counsel, John Tran. "What if there's an error? Users should have an opportunity to correct the error, users should have an opportunity to understand what goes into generating the score." The case is currently pending before a federal judge in Washington, DC. EPIC expects to obtain more records on AFI. The FOIA case is also related to EPIC's ongoing work on "Algorithmic Transparency."

EPIC has filed an amicus brief in the Massachusetts Supreme Judicial Court regarding email privacy. At issue is Google's scanning of the email of non-Gmail users. EPIC argued that this is prohibited by the Massachusetts Wiretap Act. EPIC described Google's complex scanning and analysis of private communications, concluding that it was far more invasive than the interception of a telephone communications, prohibited by state law. A federal court in California recently ruled that non-Gmail users may sue Google for violation of the state wiretap law. EPIC has filed many amicus briefs in federal and state courts and participated in the successful litigation of a cellphone privacy case before the Massachusetts Judicial Court. The EPIC State Policy Project is based in Somerville, Massachusetts.

According to an upcoming report by the President’s Council of Advisors on Science and Technology, much of the forensic analysis in criminal trials is not scientifically valid. The report, to be released this month, attacks the validity of analysis of evidence like bite-marks, hair, and firearms. The "lack of rigor in the assessment of the scientific validity of forensic evidence is not just a hypothetical problem but a real and significant weakness in the judicial system,” wrote the council. The Senate Judiciary Committee held hearings in 2009 and 2012 to discuss the need to strengthen forensic science, and Sen. Patrick Leahy (D-VT) introduced a forensic reform bill in 2014. EPIC has pursued FOIA requests on the reliability of proprietary forensic techniques. EPIC also filed a brief on the reliability of novel forensic techniques in the Supreme Court case Florida v. Harris.

The Wisconsin Supreme Court this week rejected a challenge to the use of a risk-assessment algorithm in a sentencing proceeding. These algorithms score an individual's risk of committing future crime. The Court sanctioned the use of such algorithms, provided they are not the exclusive determining factor of a sentence, and judges receive written warnings about the algorithm's shortcomings. Professor Danielle Citron warned that the court's faith in the secret techniques is "unwarranted" particularly because "human beings have a tendency to rely on automated decisions even when they suspect system malfunction." EPIC has advocated for algorithmic transparency and maintains a website describing the use of algorithms in the criminal justice system.

EPIC has filed a reply brief in federal court, rebutting the government's claim that it can withholdinformation about automated profiling. In EPIC v. CBP, a Freedom of Information Act case, EPIC seeks documents about the "Analytical Framework for Intelligence," which incorporates personal information from government agencies, commercial data brokers, and the Internet. The agency then uses secret, analytic tools to assign "risk assessments" to travelers, including U.S. citizens traveling solely within the United States. EPIC submitted a FOIA request in 2014 for documents relating the framework. EPIC has called for "algorithmic transparency" in automated decisions concerning individuals.

A White House report on Big Data and Differential Pricing released today examines new forms of discrimination resulting from big data analytics. The White House explained the risks to consumers, acknowledged the failure of self-regulatory efforts, and called for greater transparency and consumer control over their personal information. Last year, EPIC and a coalition of NGOs urged the President to establish privacy protections - including "algorithmic transparency", consumer control, and robust privacy techniques - to address Big Data risks.

In a letter to Verizon, Senators on the Commerce Committee challenged the company's practice of placing a "super cookie" oncustomers' smartphones. The letter follows the recent discovery that the advertising company Turn was secretly tracking Verizon customers, even after customers deleted its cookies. In the letter, the Senators asked Verizon to stop tracking users with undeletable cookies. EPIC has urged the White House and the Federal Trade Commission to limit the use of persistent identifiers. EPIC supports opt-in requirements and Privacy Enhancing Techniques for consumers, and algorithmic transparency for data collectors.

EPIC has sent a statement to the House Commerce Committee for the hearing, "What are the Elements of Sound Data Breach Legislation?". EPIC had testified before the House Committee in 2011 on data breach notification, urging Congress to set a national baseline standard. EPIC also supports enactment of the Consumer Privacy Bill of Rights. EPIC also urged the House Committee to promote "algorithmic transparency." EPIC has warned that “[t]he ongoing collection of personal information in the United States without sufficient privacy safeguards has led to staggering increases in identity theft,security breaches, and financial fraud.”

AI Policy Frameworks

The speed of AI innovation and its impact on society prompts a serious concern for ethical review. There are currently no agreed upon set of standards for ethical AI design and implementation. Researchers and technical experts have grappled with how to align AI research and development with fundamental human values and norms. As a response, several organizations have begun to address the ethical issues in AI by creating AI principles and guidance documents. Below are four existing principles that guide in the development of safe AI.

Asilomar AI Principles

More than 100 AI researchers gathered in Asilomar, California to attend The Future of Life Institute’s“Beneficial AI 2017” conference. Through a multi-day survey and discussion process, attendees developed the Asilomar AI Principles, a list of 23 framework principles geared toward the safe and ethical development of AI. More than 1,200 AI/Robotics researchers and 2,541 others have signed onto the principles. Notable signers include Tesla co-founder Elon Musk, theoretical physicist Stephen Hawking, and EPIC Advisory Board member Ryan Calo. The draft principles are divided into three themes: (1) Research issues, (2) Ethics and Values, and (3) Long-term Issues. The principles highlight concerns ranging from creating beneficial intelligence, safety, transparency, privacy, avoiding an AI weaponry arms race, and non-subversion by AI.

IEEE’s Guide to Ethically Aligned Design

In December 2016, The Institute of Electrical and Electronics Engineers (IEEE) and its Global Initiative for Ethical Considerations in Artificial Intelligence and Autonomous Systems published a first draft framework document on how to achieve ethically designed AI systems. Titled “Ethically Aligned Design: A Vision for Prioritizing Human Wellbeing with Artificial Intelligence and Autonomous Systems,” the 136-page document encourages technologists to prioritize ethical considerations when creating autonomous and intelligent technologies. Broken down into eight sections, the document begins with a set of general principles and then moves onto specific issue areas such as how to embed human values into their systems, how eliminate data asymmetry and grant greater individual control to personal data, and how to improve legal accountability for harms caused by AI systems. The general principles that apply to all types of AI/AS are: (1) embody the highest ideals of human rights; (2) prioritize the maximum benefit to humanity and the natural environment; and (3) mitigate risks and negative impacts as AI/AS evolve as socio-technical systems.

USACM’s Principles on Algorithmic Transparency and Accountability

In January 2017, the Association for Computing Machinery U.S. Public Policy Council (USACM) issued a statement and list of seven principles on algorithmic transparency and accountability. The USACM statement provides a context for what algorithms are, how they make decisions, and the technical challenges and opportunities to address potentially harmful bias in algorithmic systems. The USACM believes that this set of principles, consistent with the ACM Code of Ethics, should be implemented during every phase of development to mitigate potential harms. The seven principles are: (1) awareness, (2) access and redress, (3) accountability, (4) explanation, (5) data provenance, (6) auditability, and (7) validation and testing.

Japan’s AI Research & Development Guidelines (AI R&D Guidelines)

On April 2016 at the G7 ICT Ministers’ Meeting in Japan, Sanae Takaichi, Minister of Internal Affairs and Communications (MIC) of Japan, proposed to start international discussions toward establishing “AI R&D guidelines” as a non-regulatory and non-binding international framework for AI research and development. In March 2017, the MIC released a report summarizing the current progress of drafting AI R&D Guidelines for International Discussions as well as a Draft AI R&D Guidelines with comments. One of the goals of the guidelines is to achieve a human-centered society, where people can live harmoniously with AI networks while human dignity and individual autonomy is respected. Modeled after OECD privacy guidelines, the nine R&D principles found within the guidelines are: (1) collaboration, (2) transparency, (3) user assistance, (4) controllability, (5) security, (6) safety, (7) privacy, (8) ethics, and (9) accountability.

White House Report on the Future of Artificial Intelligence

In May 2016, the White House announced a series of workshops and a working group devoted to studying the benefits and risks of AI. The announcement recognized the "array of considerations" raised by AI, including those "in privacy, security, regulation, [and] law." The White House established a Subcommittee on Machine Learning and Artificial Intelligence within the National Science and Technology Council.

Over the next three months, the White House co-hosted a series of four workshops on AI:

The White House Office of Science and Technology issued a Request for Information in June 2016 soliciting public input on the subject of AI. The RFI indicated that the White House was particularly interested in "the legal and governance implications of AI," "the safety and control issues for AI," and "the social and economic implications of AI," among other issues. The White House received 161 responses.

Preparing for the Future of Artificial Intelligence surveys the current state of AI, its applications, and emerging challenges for society and public policy. As Deputy U.S Chief Technology Officer and EPIC Advisory Board member Ed Felten writes for the White House blog, the report discusses "how to adapt regulations that affect AI technologies, such as automated vehicles, in a way that encourages innovation while protecting the public" and "how to ensure that AI applications are fair, safe, and governable." The report concludes that "practitioners must ensure that AI-enabled systems are governable; that they are open, transparent, and understandable; that they can work effectively with people; and that their operation will remain consistent with human values and aspirations."

The companion report, National Artificial Intelligence Research and Development Strategic Plan, proposes a strategic plan for Federally-funded research and development in AI. The plan identifies seven priorities for federally-funded AI research, including strategies to "understand and address the ethical, legal, and societal implications of AI" and "ensure the safety and security of AI systems."

The day after the reports were released, the White House held a Frontiers Conference co-hosted by Carnegie Mellon University and the University of Pittsburgh. Also in October, Wired magazine published an interview with President Obama and EPIC Advisory Board member Joi Ito.

EPIC's Interest

EPIC has promoted Algorithmic Transparency for many years and is has litigated several cases on the front lines of AI. EPIC's cases include:

EPIC v. FAA, which EPIC filed against the Federal Aviation Administration for failing to establish privacy rules for commercial drones

EPIC v. DOJ, to compel the Department of Justice to produce documents concerning the use of “evidence-based risk assessment tools,” algorithms that try to predict recidivism, in all stages of sentencing.

EPIC has also filed amicus briefs supporting in Cahen v. Toyota that discusses the risks inherent in connected cars and has filed comments on issues of big data and algorithmic transparency.

EPIC also has a strong interest in algorithmic transparency in criminal justice. Secrecy of the algorithms used to determine guilt or innocence undermines faith in the criminal justice system. In support of algorithmic transparency, EPIC submitted FOIA requests to six states to obtain the source code of "TrueAllele," a software product used in DNA forensic analysis. According to news reports, law enforcement officials use TrueAllele test results to establish guilt, but individuals accused of crimes are denied access to the source code that produces the results.